Ne bis in idem and conflicts of jurisdiction in the european area of liberty, security and justice

• Author: Clara Tracogna
• Position: PhD in Criminal Procedure (University of Padova), Assistent Lecturer (University of Udine), Attorney-at-Law
• Pages: 55-71

Clara Tracogna

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LESIJ NR. XVIII, VOL. 2/2011

NE BIS IN IDEM AND CONFLICTS OF JURISDICTION IN THE

EUROPEAN AREA OF LIBERTY, SECURITY AND JUSTICE

Clara TRACOGNA*

Abstract

The paper offers a survey on European Court of Justice preliminary ruling decisions on art.

54 of the Convention Implementing the Schengen Agreement, which introduces the non bis in idem

principle in the European Union area. After discussing which is the rationale of the non bis in

idem principle, the study will focus on the meaning of idem factum and final decision, in order to

understand which national decisions forbid a second trial in another Member State on the same

fact towards the same person. The essay will then present the 2005 Commission Green Paper on

ne bis in idem and conflicts of jurisdiction and the 2009/948/JHA Framework Decision on the

prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings, that

Member States are expected to implement before 15th June 2012.

Keywords: ne bis in idem prin ciple; idem factum; final decision; conflicts of jurisdiction;

allocating cases to a specific Member State.

Introduction

– Ne bis in idem principle and rules on conflicts of jurisdiction express a single aim: as a

matter of fact, prevent the risk of two ore more parallel proceedings on the same fact towards the

same person displays a way to protect person’s freedom.

In other words, limit multiple prosecutions and prevent repetition of a trial arrived at its final

decision responds to legal order consistency requirements as well as to persons’ liberty rights.

The need to protect liberty rights and their stability has been expressed long time ago in rules

allocating jurisdiction among judicial bodies and solving both positive and negative conflicts of

jurisdiction. However, while ne bis in idem is a well known principle both in civil and in common

law Countries, for long time European Institutions didn’t pay much attention to the transnational

application of ne bis in idem nor to the arrangement of shared rules on mutual recognition of

foreign decisions and on the allocation of jurisdiction among Member States.

Ne bis in idem principle, together with rules preventing conflicts of jurisdiction, have to

comply with the mandatory prosecution principle, which is an expression of the Sovereignty that

States hardly give up.

Free movement rights together with disappearance of borders in the European Area have a

direct impact in the implementation of the activity of international criminal organizations. Several

States in which crimes, or part of them, are committed are potentially interested in prosecuting

criminal acts that affect their national security: however, multiple prosecutions and multiple trials

exhaust Member States’ resources and hamper victims’ and defendants’ rights as well as

eyewitnesses’ participation to the related trial.

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* PhD in Criminal Procedure (University of Padova), Assistent Lecturer (University of Udine), Attorney-at-

Law. (Email address: clara.tracogna@unipd.it; clara.tracogna@tin.it.)

56 Lex ET Scientia. Juridical Series

LESIJ NR. XVIII, VOL. 2/2011

Prohibition of a second judgment on the same fact towards the same person appeared first in

the 1987 Convention between European Community Member States on double jeopardy: those

provisions entered then in Title III, Chapter III of the European Convention on the Implementation

of the Schengen Agreement (CISA), which is entirely dedicated to the application of ne bis in idem

principle. The introduction of these rules in a Convention whose first aim was to pull down

borders shows the tight link between ne bis in idem and freedom of movement within the

European area. As a matter of fact, the European Court of Justice, in its preliminary ruling

decisions, ruled that art. 54 of the European Convention on the Application of the Schengen

Agreement, providing the European ne bis in idem principle, introduces a corollary to the freedom

of movement in a “negative” meaning: the right to move from one State to another shouldn’t have

negative consequences, i.e. multiple prosecutions towards the same person for the same act.

According to art. 82, § 1, lett. b of the Treaty on the functioning of the European Union, the

Union is competent in preventing and solving conflicts of jurisdiction among Member States.

However, few and no widely applied rules excepted, rules on prevention and resolution of conflicts

of jurisdiction were lacking: a first step was taken with the 2005 «Green Paper on Conflicts of

jurisdiction and the Principle of ne bis in idem in Criminal Proceedings» published by the

European Commission. Due to the Green Paper, art. 54 CISA is not a sufficient warrant: for

example, recognizing a non bis in idem effect to the final decision first ruled in one Member State

leads to the practice “first come, first served”, on which basis the State that first passes a final

decision stops any further proceeding elsewhere, even when a second State appears to be, for

instance, closer to the fact and its evidences. Moreover, a forum shopping technique could be used

by National judicial authorities: for example, when coordinating investigations, the State mieux

placée to prosecute crimes is chosen during coordination meetings in a case by case way, affecting

any previous certainty about the competent judge. Eventually, there are still some exceptions to ne

bis in idem in art. 54 CISA that should be changed or reduced.

The outcome of the consultations opened with the Green Paper is the 2009/948/JHA

«Framework Decision on the prevention and settlement of conflicts of exercise of jurisdiction in

criminal proceedings», that Member States are expected to implement before 15th June 2012. The

Framework Decision introduces a consultation procedure in order to choose, among Member

States equally entitled, which is the best national judicial Authority to prosecute crimes. Indeed,

the wording of art. 54 CISA hasn’t been changed and is therefore still in force. However, the

forthcoming implementation of the Framework Decision raises several problems of consistency

with national principles (i.e. mandatory prosecution principle) and with defense rights, because nor

the defendant nor his lawyer are involved in the procedure at the end of which the jurisdiction is

allocated.

1. Rationale of ne bis in idem principle at national, international and European level -

The bis de eadem re ne sit actio rule comes from Roman Law and passed into present national

systems: prohibition of multiple prosecutions on the same fact towards the same person is often

codified in legislation and acknowledged as a general principle of law at Courts1.

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1 In Roman law, see M.T. CICERO, Laelius, de amicitia, Chapter 22, § 5: «praeposteris enim utimur consiliis et

acta agimus, quod vetamur vetere proverbio», that recalls the Latin saying «acta agere»; M.F. QUINTILIANUS,

Institutio oratoria, Liber VII, Chapter 6, § 4: «Solet et illud quaeri, quo referatur quod scriptum est: “bis de eadem

re ne sit actio”: id est, hoc “bis” ad actorem an actionem. Haec ex iure obscure»; E.D. ULPIANUS, Digestum, Liber

48, Titulum 2, (de accusationibus), Lex 7, § 2: «Iisdem criminibus quibus quis liberatus est, non debet praeses pati

eundem accusari»; Emperors Diocletianus and Massimilianus’ Constitution to the Codex Iustinianus, Liber 9,

Titulum 2, lex 9: «Qui de crimine publico in accusationem deductus est, ab alio super eodem crimine deferri non

potest». For a historical view of the ne bis in idem rule, see V. ANDRIOLI, Il principio del ne bis in idem e la dottrina